100% Work from Home?
The Flexible Working case of Wilson v FCA
The recent case of Wilson v FCA is of interest. As many employers increasingly mandate employees to return to spending more days in the office as opposed to working from home, employers and employees will have to navigate the latest legal landscape of flexible working.
Correct Factual Basis
This article focuses on the lesson from Wilson v FCA on the sufficiency of deciding flexible working applications on a correct factual basis. (Procedures for making and deciding flexible work applications fall outside the scope of this article.)
It is hoped that this summary should make useful reading for both employees who are challenging flexible working application decisions and employers who are making and defending them.
The case deals with a s80H(1)(b) complaint that the employer’s refusal of a flexible working request was “based on incorrect facts”. Let’s look first at s.80G(1):
- 80F.Statutory right to request contract variation
- 80G.Employer’s duties in relation to application under section 80F
[note that s.80F and s.80G have recently been amended by the Employment Relations (Flexible Working) Act 2023] - 80H.Complaints to employment tribunals
- 80I.Remedies
80G Employer’s duties in relation to application under section 80F
(1)An employer to whom an application under section 80F is made—
(a)shall deal with the application in a reasonable manner,
(aza)shall not refuse the application unless the employee has been consulted about the application, [as inserted by the Employment Relations (Flexible working) Act 2023]
(aa)shall notify the employee of the decision on the application within the decision period, and
(b)shall only refuse the application because he considers that one or more of the following grounds applies—
(i)the burden of additional costs,
(ii)detrimental effect on ability to meet customer demand,
(iii)inability to re-organise work among existing staff,
(iv)inability to recruit additional staff,
(v)detrimental impact on quality,
(vi)detrimental impact on performance,
(vii)insufficiency of work during the periods the employee proposes to work,
(viii)planned structural changes, and
(ix)such other grounds as the Secretary of State may specify by regulations.
80H Complaints to employment tribunals
(1)An employee who makes an application under section 80F may present a complaint to an employment tribunal—
(a)that his employer has failed in relation to the application to comply with section 80G(1), …
(b)that a decision by his employer to reject the application was based on incorrect facts
(c)that the employer’s notification under section 80G(1D) was given in circumstances that did not satisfy one of the requirements in section 80G(1D)(a) and (b).
In Wilson v FCA, the s.80(H)(1)(b) challenge was that, in refusing the claimant’s application for 100% work from home, the respondents based the decision on incorrect fact(s), namely that if the claimant worked entirely from home it would have a detrimental impact on quality and performance.
It was submitted on behalf of the claimant that FCA was working towards location-agnostic recruitment, there was no empirical evidence that face to face working is better than remote working, and she had an exceptional track record throughout a period of entirely remote work. Thus, she says, it was an incorrect fact that there would be detrimental impact if the application was granted.
The respondents disagreed, arguing that the work from home period was during Covid, so it was not in the context of a period of business as usual that the claimant had proven herself.
It is not difficult to see how very similar arguments on both sides could play out in other cases.
In particular the respondents were able to give specific examples of how quality and performance would be affected:
- To establish her conclusion that there would be a detriment quality and performance Miss Lipscombe-Mitchell has highlighted in evidence the following facts where in her assessment there would be a detriment were they to be performed entirely on-line:
i) Meeting and welcoming new staff members
ii) Internal training, supervision and department needs where a line manager has a visible presence in the office to provide structured or informal/ad hoc advice and support to team members
iii) Attendance at in-person events and conferences and planning meetings run within physical office accommodation;
iv) Attendance at weekly ‘Cascade’ meetings where information is imparted by Senior Managers and individual and team successes are acknowledged and celebrated
v) Authorisation Leadership sessions where managers, Heads of Departments and Directors meet to discuss key topics
vi) ‘Department Day’ – management team would present topics to the department and spend the day together. Miss Lipscombe-Mitchell would want to run the session in a ‘market stall’ layout so staff, especially new staff could move around and physically meet the managers. [my emphasis]
Upon that evidence the tribunal decided:
- I have considered what the effect would be of granting the application and brought my judgment to interrogate the underlying facts which are asserted. Whilst I agree that many of these elements could and no doubt are completed successfully through the use of remote working I am satisfied that Miss Lipscombe-Mitchell is right to identify weaknesses with remote working. It is the experience of many who work using technology that it is not well suited to the fast paced interplay of exchanges which occur in, for example, planning meetings or training events when rapid discussion can occur on topics. Similarly there is, as has been identified, a limitation to the ability to observe and respond to non-verbal communication which may arise outside of the context of formal events but which nonetheless forms an important part of working with other individuals. This is particularly so when considering the senior position held by the Claimant.
- In my judgment it is not incorrect for Miss Lispcombe-Mitchell to identify the factors above as leading to a detriment to the quality and performance of Miss Wilson’s work notwithstanding her excellent reviews and references thus far.
- Further in particular I note items ii), iii) and iv) as being factors where when the situation is considered vis a vis the application being granted or refused a detriment to performance and quality is clearly established. These factors envisage a physical presence by Miss Wilson within an office and so it is trite to observe they simply can not be achieved in the same way through remote working. I am satisfied on the evidence that these are elements of the work of the Claimant which the Respondent legitimately expect her to complete. An inability to complete these elements clearly does detrimentally impact upon the performance and quality of Miss Wilson’s work as it is expected by the Respondents. Again I readily acknowledge Miss Wilson’s excellent references and performance reviews and it is clear that she is performing well in her work, but ultimately she is not working in the way envisaged by the Respondent. As such these factors do seem to me to highlight areas where the Claimant’s work would not to the quality or performance that her employers would wish if the application was granted.” [my emphasis]
The tribunal went on to identify “critical thought” and “detailed consideration” as being crucial to whether an employer was basing their decision on incorrect facts.
While it is clear that 100% work from home would preclude certain necessary in-person interactions, It might require even more careful consideration for employers to be able to assert a clear factual basis for allowing, say for example, two days of remote working as opposed to three.
I would suggest that employees and especially employers must engage in carefully reasoned consideration of specifically why, whether, and how much the proposed extent of remote working impacts on quality or performance or any other s.80G(1)(b) grounds before jumping to challenges or conclusions.
Essential further reading for those running a tribunal case will include the much older cases of Commotion Ltd v Rutty and Singh v Pennine Care, both in the EAT.
